In re B.P. ( 2020 )

Filed 6/2/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re B.P. et al., Persons Coming
Under Juvenile Court Law. B303804
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 19CCJP00228A–C)
Plaintiff and Respondent,
v.
D.S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Jana M. Seng, Judge. Dismissed.
Suzanne Davidson for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and William D. Thetford, Deputy
County Counsel, for Plaintiff and Respondent.
___________________________
D.S. (mother) appeals a detention order based on a
subsequent dependency petition filed pursuant to Welfare and
Institutions Code section 342.1 Respondent Los Angeles County
Department of Children and Family Services (DCFS) has moved
to dismiss the appeal because the detention order based on a
section 342 petition is interlocutory and not appealable.
We agree. We grant the motion and dismiss the appeal.
BACKGROUND
On February 28, 2019, the juvenile court sustained an
initial section 300 petition alleging mother’s three children, B.P.,
I.P., and M.M., were at risk of serious physical harm because
mother was unable to address B.P.’s mental health and
behavioral issues. DCFS did not seek to detain the children from
mother. Mother agreed to a court-ordered case plan.
The court held a six-month review hearing on August 28,
2019, and based on reports mother had been using
methamphetamine, the court ordered her to submit to on demand
drug testing. It continued jurisdiction to the 12-month review
hearing.
A few weeks later on September 20, 2019, DCFS filed a
section 387 supplemental petition alleging the prior disposition
was ineffective. It requested the court detain the children from
mother. At a hearing on October 28, 2019, the court denied the
detention request and again ordered mother to drug test
monthly.
Mother started exhibiting signs of domestic violence and
drug abuse, and DCFS received a report she was using drugs in
the children’s presence. She also missed a drug test. On
1 All statutory citations refer to the Welfare and Institutions
Code.
2
November 25, 2019, the juvenile court issued a warrant
authorizing DCFS to remove the children from mother, and they
were removed the next day.
On December 2, 2019, DCFS filed a section 342 subsequent
petition, which added a new ground for jurisdiction based on
domestic violence. The next day—December 3, 2019—the court
found the children fell within section 300, ordered the children
removed from mother, and set a jurisdictional hearing for
February 5, 2020.
Mother filed a notice of appeal from the December 3, 2019
detention order.
Subsequently, DCFS filed a first amended subsequent
petition pursuant to section 342 adding another new ground
alleging drug use because mother tested positive for
methamphetamine and amphetamine. On April 22, 2020, the
court dismissed the original section 342 petition and ordered the
children remain detained from mother. The jurisdictional
hearing on the first amended subsequent petition is currently set
for July 30, 2020.2
DISCUSSION
DCFS moves to dismiss mother’s appeal both because the
detention order on a section 342 subsequent petition is a
nonappealable interlocutory order and because the first amended
subsequent petition rendered the appeal of the detention order
2 We grant DCFS’s request for judicial notice of the first
amended subsequent petition and the juvenile court’s orders
following mother’s notice of appeal. We may consider this post-
appeal evidence in deciding whether to dismiss mother’s appeal.
(In re N.S. (2016) 245 Cal. App. 4th 53, 57.)
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moot. We agree the order was not appealable, so we do not
address mootness.
Welfare and Institutions Code section 395 governs juvenile
dependency appeals. It provides, “A judgment in a proceeding
under Section 300 may be appealed from in the same manner as
any final judgment, and any subsequent order may be appealed
from as from an order after judgment.” Under this provision, the
dispositional order on a section 300 petition is the appealable
judgment. (In re Javier G. (2005) 130 Cal. App. 4th 1195, 1199
(Javier G.).) An order entered prior to disposition, such as a
jurisdictional order, is “interlocutory and not appealable, and
thus any issue pertaining to it must be raised in a timely appeal
of the dispositional order.” (Id. at p. 1200.)
These same rules for appealability apply when the appeal
involves a petition brought pursuant to section 342. Section 342
provides in relevant part, “In any case in which a minor has been
found to be a person described by Section 300 and the petitioner
alleges new facts or circumstances, other than those under which
the original petition was sustained, sufficient to state that the
minor is person described in Section 300, the petitioner shall file
a subsequent petition.” (§ 342, subd. (a).) Importantly, “Unless
otherwise provided by law, all procedures and hearings required
for an original petition are applicable to a subsequent petition
filed under this section.” (Id., subd. (b); see Cal. Rules of Court,
rule 5.560(b).) Those procedures include holding detention,
jurisdictional, and dispositional hearings in accordance with
section 300. (Cal. Rules of Court, rule 5.565(d)–(e); see In re Joel
T. (1999) 70 Cal. App. 4th 263, 268 [after section 342 petition is
filed, “the court must hold jurisdictional and dispositional
hearings” and “again decide whether to leave the minors in the
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custody of their parents or remove them and provide or deny
services”]; see also In re A.B. (2014) 225 Cal. App. 4th 1358, 1364
[“All procedures and hearings required for an original petition
are required for a subsequent petition and are conducted under
the same rules.”].)
Like orders entered on an original section 300 petition
before the dispositional order, orders issued before the
dispositional order on a section 342 petition are interlocutory and
not appealable. The court in Javier G. reached the same
conclusion when it dismissed an appeal of jurisdictional findings
on a section 387 supplemental petition prior to disposition. Like
section 342 subsequent petitions, section 387 supplemental
petitions require a bifurcated jurisdiction/disposition hearing.
(Javier G., supra, 130 Cal.App.4th at p. 1200.) Because “[t]he
bifurcated procedures for original petitions (§ 300) and
supplemental petitions (§ 387) are conceptually identical,” the
“jurisdictional findings made in either instance are necessarily
interlocutory and nonappealable. A disposition order on a
supplemental petition is appealable as a judgment [citation], and
issues arising from the jurisdictional portion of the hearing may
be challenged on appeal of the dispositional order.” (Javier G., at
p. 1201.)
Because the bifurcated procedures for original petitions
(§ 300) and subsequent petitions (§ 342) are likewise
“conceptually identical,” the detention and jurisdiction orders
entered on a section 342 petition are “necessarily interlocutory
and nonappealable.” (Javier G., supra, 130 Cal.App.4th at p.
1201.) The disposition order on a section 342 subsequent petition
is the appealable judgment, and a parent may challenge
detention and jurisdictional orders on appeal from the
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dispositional order. (Javier, at p. 1201.) Thus, the detention
order mother appeals here was interlocutory and not appealable.
Mother incorrectly suggests the detention order is
appealable because it is an order after disposition of the original
section 300 petition. That is always true for a section 342
subsequent petition. (In re Carlos T. (2009) 174 Cal. App. 4th 795,
806 [“[I]t is always the case with regard to a subsequent petition
that the child at issue has already been declared a dependent
child.”].) It was also true for the section 387 petition in Javier G.,
and the court still dismissed the appeal. (Javier G., supra, 130
Cal.App.4th at p. 1198.) As we have explained, the section 342
subsequent petition will require new jurisdiction and disposition
hearings, leading to a disposition order on the new allegations.
Indeed, in the detention order on the section 342 petition here,
the court expressly found the children fell within section 300,
justifying their detention from mother. Again, mother may
challenge the detention order on appeal from the subsequent
dispositional order. We lack jurisdiction to entertain mother’s
appeal of the detention order entered prior to disposition. (Javier
G., supra, at p. 1201.)
DISPOSITION
Mother’s appeal is dismissed.
CERTIFIED FOR PUBLICATION
BIGELOW, P. J.
WE CONCUR:
GRIMES, J. WILEY, J.
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